Statewatch
analyisis no.7
The "Anti-terrorism roadmap" - analysis of "operational
measures"The EU's plans post-11 September concerning
justice and home affairs and civil liberties have been set out
in a number of documents.

The general plan was set out in the "Conclusions"
of the special meeting of Justice and Home Affairs Ministers
on 20 September. This was followed an "Anti-terrorism roadmap
SN 4019/01" dated 26 September which was revised SN 4019/1/01
on 2 October. The overall plan was then brought together as "Coordination
of implementation of the plan of action to combat terrorism",
first as 12579/01 (12 October) then as 12800/01 (16 October)
and 12800/1/01 REV 1 (17 October).

This report analyses the "operational" measures
in 12800/1/01 and "Conclusions" (20.9.01), as distinct
from the new legislative measures proposed. For new measures
see: Conclusions, now updated).

The term "intelligence services" is used confusingly
in the documents. In most cases this means internal security
agencies (like MI5) and external intelligence agencies (like
MI6 and GCHQ).

Many of the "operational" initiatives in the Conclusions
and the "roadmap" (set out in 12800/1/01) concerned
the creation of ad hoc, informal, groups, targets and cooperation.

There is little or no mention of accountability to the European
parliament or national parliaments. No mention at all of data
protection or to recourse to courts for individuals who might
be affected. Moreover, there is a real danger that these "temporary"
arrangements will become permanent leaving a whole layer of EU
practices unaccountable.

Under the EU General Affairs Council there is to be: "Cooperation
and information exchange between Member States' military intelligence
services". Mr Solana, the Secretary-General of the Council
is to report back to General Affairs on 19 November.

This was in 12800/01 and was deleted from 12800/1/01
REV 1 - which does not mean it is not happening, rather that
the Council does not wish to draw attention to it.

Joint investigation teams of officers and officials from EU
member states are to be set up to: "coordinate current investigations
into terrorism which are in any way linked". The teams will
be comprised of:

In addition the Provisional Cooperation Unit, Pro-Eurojust,
is asked to call a meeting of "magistrates specialising
in counter-terrorism" to put forward observations on any
"obstacles" to mutual legal cooperation.

3. Pro-Eurojust cooperation (AR 29)

Under Pro-Eurojust there is to be the strengthening of "cooperation
between anti-terrorist magistrates". The first such meeting
was held on 10 October. There are no data protection provisions
for Pro-Eurojust despite request by the European Parliament.

4. Europol/Pro-Eurojust and Police Chiefs Task Force (AR
34)

The Article 36 Committee is to convene a meeting between Europol,
Pro-Eurojust and the Police Chiefs Task Force to ensure better
coordination - report to be prepared.

It should be noted that this report refers throughout to the
"Police Chiefs Task Force" whereas it has been called
the "Police Chiefs Operational Task Force" (PCOTF)
since early in 2000. It is presumed to be the same body.

PCOTF is charged with organising high-level meetings of the
"heads of EU counter-terrorist units" starting in October.

"consider missions to be entrusted to the team of
counter-terrorist specialists within Europol"

"Missions" in EU-parlance can mean liaison meetings,
tasks or operations. It is likely that the results of the Europol
analysis files and assessments will pass back to this ad hoc
group of Heads of counter-terrorist units where they concern
a threat within the EU.

a) to open and expand "analysis files" on terrorism
based on information (hard facts) and "intelligence"
(supposition and suspicion) provided by police forces (ordinary
police, criminal investigation and Special Branches) and by intelligence
services (internal security agencies and external intelligence
agencies).

b) "Within Europol, for a renewable period of six months,
a team of counter-terrorist specialists" is to be set up.
These "liaison officers" from police, internal security
and intelligence agencies specialising in terrorism will: i)
collect and analyse information and intelligence and provide
operational and strategic analysis and ii) "draft a threat
assessment document" including "targets, damage, potential
modi operandi", consequences for security and preventive
measures.

There is no mention of the logical actions which might be
undertaken as a result of these analyses, ie. surveillance or
action against individuals or groups inside and outside the EU.
It can only be presumed that these would be decided and undertaken
via the PCOTF sub-groups.

The issue of whether security and intelligence agencies will
hand over all information and data to Europol is considered below.

7. Inventory (AR 39)

An inventory of national measures and alert plans is to be
compiled by the Council's Working Party on Terrorism and the
Police Chiefs Task Force.

The Article 36 Committee (comprised of senior officials from
Home and Interior Ministries) is given the job of ensuring the
"closest possible coordination between Europol, Pro-Eurojust
and the EU Police Chiefs Task Force".

The Committee is also to hold a "policy debate"
on "strengthening cooperation between police services, including
Europol and intelligence services".

10. SIS access (AR 37 CON pt 13)

Access to the Schengen Information System, which is based
in Strasbourg, may be extended from police, immigration and customs
officials "in the context of counter-terrorism". According
to 12800/1/01, will be built in SIS II (the upgrade of the Schengen
Information System to cover all EU members). It may in addition
refer to the planned access by national vehicle licensing by
the security and intelligence agencies.

The Heads of the security and intelligence agencies in the
EU are to "meet on a regular basis" starting in October.

The heads of these agencies are expected to include heads
on internal security agencies (like MI5 in the UK) and external
intelligence agencies (like MI6 and GCHQ in the UK). It is also
expected that on-going work will be delegated to "expert"
meetings under the same umbrella - and reporting back to the
senior group. It is likely that assessment compiled by Europol
concerning threats emanating from outside the EU will pass straight
to this new ad hoc group.

In theory this group will stand alongside the Police Chiefs
Operational Task Force but in practice it will be the senior
group. This is because it is extremely unlikely that the security
and intelligence agencies will pass on all their data and intelligence
to Europol - this will be passed on a "need to know"
basis.

This new group has no legal standing, no provision for data
protection, and no mechanism for parliamentary scrutiny or accountability.

The first meeting was held on 11-12 October.

12. New evaluation mechanism (AR 38 CON pt 15)

A mechanism is to be set up for the "evaluations"
(of one member state by another) of a "legislative, administrative
and technical" nature. The examples given are "telephone
tapping" and the ability to "draw up a list of terrorist
organisations". Experience from the mutual evaluation reports
on police cooperation suggests that "best practice"
is taken to means procedures which leave law enforcement agencies
unhampered in their work (eg: removal of judicial checks) are
usually recommended.

This procedure - like the similar one running on crime - given
great power to officials to influence and write policy.

In addition, the General Secretariat of the Council to have
two national experts on counter-terrorist seconded to it.

Procedure to start in October.

13. Exchange of information on incidents (CON pt 18)

A mechanism for the rapid exchange of information when a terrorist
attack occurs in one or more member states was already in the
pipeline.

What is of interest is that this report, dated 23 August,
clearly defines "terrorist" acts in a more limited
way that the draft Framework Decision on combating terrorism.
For example, it would not include the "unlawful seizure
or damage to state or government facilities..." (Article
3.f) unless it involved bombing, an armed attack, hijacking,
hostages or biological or chemical weapons.

Not mentioned in 12800/01 or 12800/1/01.

14. List of proscribed groups (AR 26)

This was only mentioned as a possibility on the "Conclusions"
in 12800/01 it becomes:

"Identification of presumed terrorists in Europe and
of organisations which support them in order to draw up a common
list of terrorist organisations"

Those charged with drawing up the list are: Europol, anti-terrorist
units and intelligence agencies. List to be discussed by the
intelligence chiefs and the Council Working Party on Terrorism.

This will be, in effect, a list of proscribed organisations.

Measures at borders

15. PCOTF: strengthening of external borders (AR 42
CON pt 24)

The Police Chiefs Operational Task Force is charged with preparing
measures to "strengthen controls at external borders"
and to report back to the December meeting of the Justice and
Home Affairs Council.

This is termed "Urgent" in 12800/01. Chair of Police
Chiefs Operational Task Force and of "Immigration Services"
are asked to report need for new measures to Justice and Home
Affairs Council on 6-7 December. Report also expected on "Operation
HIGH IMPACT" which was conducted on 2-3 October.

16. Schengen Convention Article 2.3 (CON pt 24)

The Conclusions calls on all member states to "strengthen
immediately the surveillance measures provided for in Article
2.3" of the Schengen Convention. It calls for police, immigration
and other officials to step up identity checks within their countries
by using this power. The associated Article 22 of the Convention
says that an alien who has legally entered a Schengen countries
must tell the authorities within three days of entry.

No mentioned in 12800/01.

17. Checks on issuing ID cards and residence permits
(CON pt 25)

Another internal measure concerns "the utmost vigilance
when issuing identity documents and residence permits (particularly
in the case of duplicates)". Every year hundreds of thousands
of lost or stolen documents (passports, identity cards etc) are
recorded on the Schengen Information System.

Not mentioned in 12800/01.

18. Issuing of visas (AR 44 CON pt 26)

The issuing of visas is to be conducted with "maximum
vigour" and the Commission is asked to prepare, by March
2002, a proposal for a "network of information exchanges
concerning visas issued".

19. Systematic use of Schengen "alerts" (AR
45 CON pt 27)

The Conclusions call for member states to use the Schengen
Information System (SIS) to provide "more systematic input
into the system of alerts" under Article 95 (people wanted
for extradition), Article 96 (people to be refused entry who
believed to be a threat to public order or national security)
and Article 99 (people or vehicles to be placed under surveillance).

20. Re-imposition of border controls (AR 43 CON pt
28)

Arrangements to be studied to put in place a "coordinated
recourse" to the imposition of border controls by all member
states in the event of a "terrorist threat of exceptional
gravity" (Article 2.2 of Schengen).

Document 12800/1/01 states that: "The Police Chiefs Task
Force will be responsible for making operational the decision
to re-establish internal border checks".

21. Re-examination of international commitments (AR 46
CON pt 29)

Perhaps one of the most extraordinary "Conclusions"
is that the European Commission is asked to:

"examine urgently the relationship between safeguarding
internal security and complying with international protection
obligations and instruments"

This is a clear reference to, at the least, the 1951 Geneva
Convention.

Document 12800/1/01 says the need for a Commission proposal
is "Urgent".

Cooperation with the USA

22. Assessment and joint meetings (AR 49 CON: pt USA.1
+ pt USA 4)

The EU is to carry out with the US an immediate assessment
of terrorist threats "including in particular the identification
of terrorist organisations" - this suggests that input from
the US may influence the proposed EU list of proscribed organisations.

Four times a year there is to be joint meetings of the COTER
(counter-terrorism under the "second pillar", defence
and foreign policy) and the JHA Working Party on Terrorism "Troikas".
Their reports and assessments will be fed into "high-level
Transatlantic Dialogue meetings".

23. EU-US police cooperation (AR 53 CON: pts US 4 &
5)

US experts on counter-terrorist measures are attended the
planned meeting of experts under the PCOTF (see point 2 above).

The Director of Europol is instructed to conclude an "informal"
agreement, pending a formal one, to be concluded by 16 November.
This agreement is to provide for: "the exchange of liaison
officers between Europol and US agencies that are active in the
policing sector" (emphasis added). The Director of Europol
is also to:

"open negotiations with the United States on the conclusion
of an agreement which includes the transmission of personal data"

Europol has concluded a number of agreements to exchange personal
data and a number are in preparation - the US is not on this
agenda. Moreover, a broad agreement covering policing in general
would raise major questions as to the level of data protection
afforded under US law.

The Council agrees in principle to an agreement with the US,
under Article 38 of the Treaty on European Union, covering "penal
cooperation on terrorism". The big barrier here, apart from
legal standards, is the use of the death penalty in the majority
of US states and there is a federal death penalty.

25. Cooperation on illegal immigration (AR 56)

This is not mentioned in the "Conclusions" and is
introduced in 12800/01. It calls for measures to:

"intensify cooperation with the United States in field
of illegal immigration, visas and false documents"